Calcutta High Court (Appellete Side)
Rajendra Kumar Ameria & Anr vs Union Of India & Ors on 27 July, 2026
S/L 3
27.07.2026
Court. No. 25
Suvayan
WPA 16764 of 2026
Rajendra Kumar Ameria & Anr.
Vs.
Union of India & Ors.
Mr. Jishnu Saha, Sr. Adv.
Mr. Ishan Saha
Ms. Ayushi Mishra
Mr. Satyam Bhimsarin
...for the petitioners.
Mr. Sanajit Kr. Ghosh
Ms. Mary Datta
Mr. Siddharta Gupta
...for the Union of India.
1. The petitioners have filed the present writ application
challenging the impugned notice dated July 3, 2026
wherein the railway authorities have claimed an amount
of Rs. 1,40,57,835.32 from the petitioners being the
maintenance and inspection as well as OHE maintenance
charges from 2017-2018 to 2022-2025.
2. Mr. Saha, learned Senior Advocate appearing for the
petitioners submits that in the said notice the
respondents have threatened the petitioners that if the
petitioners will not pay the aforementioned amount, the
respondent authorities adjust the amount from the
existing pending dues of the petitioners against the
Eastern Railway.
3. Learned counsel for the petitioners submits that there
are two agreements entered between the parties, one is
with regard to the private siding agreement No. 567
dated February 6, 2018 and another is with regard to the
manufacture and supply of wagons. He submits that
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under the siding agreement there is no provision or
clause that the railway authorities can adjust the pending
amount of the petitioners from the existing pending dues
of the petitioners. Learned counsel for the petitioners
further submits that though in the agreement there is a
clause of arbitration but the claim raised by the railway
authorities are beyond the purview of the agreement. He
submits that siding agreement executed on October 25,
2019 and the claim made by the respondents are from
2017-2018 onwards. Thus the arbitration clause will not
apply with regard to the said claim.
4. Learned counsel for the petitioners further submits that
by a letter dated January 30, 2026 the railway
authorities have informed that OHE maintenance cost in
respect of the petitioners for siding, Baruipur is not
applicable and it is to be exempted but the respondent
authorities in the impugned notice have claimed the
OHE maintenance charges.
5. Learned counsel for the petitioners has relied upon the
judgment in the case of Bharti Airtel Limited & Anr.
vs. Vijaykumar V. Iyer & Ors. reported in 2024
SCC OnLine SC 4 and submits that for set off in law,
the obligations existing between the two parties must be
debts which are for liquidated sums or money demands
which can be ascertained with authority.
6. Learned counsel for the petitioners further relied upon
the judgment in the case of Gangotri Enterprises
Limited vs. Union of India & Ors. reported in
(2016) 11 SCC 720 and submits that a person who
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commits a breach of the contract incurs any pecuniary
liability, nor would it be true to say that the other party
to the contract who complaints for the breach has any
amount due to him from the other party the only right
which he is the right to go to the Court of law and recover
damages.
7. He further relied upon the judgment in the case of M/s
H. M. Kamaluddin Ansari & Co. vs. Union of
India & Ors. reported in (1983) 4 SCC 417 and
submits that the question whether any amounts were
payable by the petitioner to the respondents under other
contracts was not the subject matter of the arbitration
proceeding.
8. Per contra learned counsel appearing for the railway
authorities raised the preliminary objection with regard
to the maintainability of the present writ application on
the ground that the siding agreement dated September
25, 2019 contains the arbitration clause and the
petitioners by a notice dated July 11, 2026 has admitted
that dispute between the parties is to decide under the
arbitration but instead of initiating the arbitration
proceeding, the petitioners have filed the present writ
application.
9. Learned counsel for the respondents further submits that
time and again the respondents have issued the demand
notice with regard to the claim of the respondents but the
petitioners have not paid the said amount and as such
finding no other alternative, the respondent authorities
have issued notice dated July 3, 2026 directing the
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petitioners to pay the amount of Rs. 1,40,57,835.32
failing which the pending dues will be adjusted from the
pending bill of the petitioners. He has relied upon the
clarification dated December 19, 2025 wherein the
railway authorities have clarified regarding applicability
of the OHE maintenance cost/charges for siding
commission and submits that the query raised by the
zonal railways have been clarified by the concerned
authority wherein it is categorically mentioned that the
siding/terminal commission prior to FMC 11 of 2016 are
not supposed to pay the OHE maintenance charges as
there are continued to be the responsibility of railways
siding but subsequently it was further clarified that the
revised guidelines for OHE maintenance charges (over
siding commissioned under FMC 11 of 2016) are
applicable with effect from June 23, 2020 that is from
the date of issue of amendment letter. Prior to this date,
sidings/terminals were governed as per their original
agreement. He further submits that the authorities have
further clarified that OHE maintenance is to be taken up
by the railway and the costs thereof to be raised by
railway as OHE maintenance charges as per guidelines
mentioned in the Board’s letter dated March 6, 2024.
10. Learned counsel for the respondents further submits that
in Clause 8 of the siding agreement provides for
maintenance and the other charges and as such the
respondent authorities have raised the bill with regard to
the maintenance and the inspection as well as the OHE
maintenance charges in accordance with the agreement.
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11. Learned counsel for the respondent further submits that
in terms of the clarification dated December 19, 2025 the
respondents can claim the OHE maintenance from June
23, 2020 instead of October 25, 2022. He submits that
the claim made by the respondents in the impugned
notice dated July 3, 2026 the OHE maintenance charge
is to be claimed only from June 23, 2020 not from
October 25, 2022.
12. Learned counsel for the respondent has also relied upon
the judgment in the case of Kamaluddin Ansari &
Co. vs. Union of India reported in 1984 AIR 29 and
submits that the Hon’ble Supreme Court has
categorically held that injunction order restraining the
respondents from withholding the amount due under
other pending bills to the contractor virtually amounts to
a direction to pay the amount to the contractor. Such an
order was clearly beyond the purview of Clause (b) of
Section 41 of the Arbitration Act.
13. By referring the said judgment, learned counsel for the
respondents submits that if this Court passed any order
restraining the respondents for realizing the amount
claimed by the respondents, these amounts to allow the
petitioners to pay the remaining pending bill of the
petitioners.
14. The petitioners have also relied upon the unreported
judgment passed by the co-ordinate Bench of this Court
in the case of Titagarh Wagons Limited & Anr. vs.
Union of India, represented by the Principal
Secretary, Ministry of Railways & Ors. in WPA
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18852 of 2021 dated April 5, 2022 wherein the co-
ordinate Bench of this Court held that the matter falls in
the realm of private contract between the railways and
the petitioners and the demand raised by the railways
cannot be gone into or decided by the Court since it
involves disputed questions of fact requiring a trial by
evidence and the Hon’ble Judge has dismissed the writ
application.
15. Heard the learned counsel for the respective parties
perused the materials on record.
16. The respondents have claimed an amount of Rs.
1,40,57,835.32 by the impugned notice dated July 3,
2026 being the maintenance and the inspection as well
as OHE maintenance charges. The maintenance and the
inspection have been claimed from year 2017-2018,
2021-2022, 2022-2023 and OHE maintenance charges
have claimed from October 25, 2022 to October 24, 2025
and July 24, 2022 to July 24, 2026.
17. At the time of hearing, learned counsel for the
respondents submits that the OHE maintenance charges
is to be paid by the petitioners from June 23, 2020
instead of October 25, 2022. The issue raised in the
present writ application whether the claim made by the
respondents are coming under the purview of the
arbitration clause.
18. Clause 34 of the siding agreement dated September 25,
2019 provides for arbitration which reads as follows:
“34. Arbitration
7(A) In the event of any dispute or difference of
opinion between the parties as to the
respective rights and obligations of the
parties hereunder or as to the true intent and
meaning of these presents or any or
conditions thereof arising such dispute or
difference of opinion (except the matters
regarding which the decision has been
specifically provided for in this agreement
shall be referred to an arbitral tribunal
consisting of at least 3 members to be
appointed by the General Manager, Eastern
Railway for the time being, and his decision
shall be final conclusive and binding on the
parties. For the purpose of this Agreement,
the General will mean the head of the Eastern
Railway Administration.”
19. As per the said Clause any dispute or differences of
opinion between the parties as to the respective rights
and obligations of the parties hereunder or as to the true
intent and meaning of these presents or any or
conditions thereof arising such dispute or difference of
the opinion the parties have to approach the arbitration.
20. In the present case, the respondents have claimed the
maintenance and the inspection charges from 2017 to
2023 and the OHE maintenance charges from October
25, 2022, now the respondents claiming that the claim
should be from June 23, 2020 till July 24, 2025. The
siding agreement was entered on September 25, 2019 but
as per Clause 37 of the agreement, the agreement shall be
deemed to have come into force on and from November
7, 2003.
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21. Learned counsel for the petitioners submits that the
claim raised by the respondent authorities is not coming
under the purview of the arbitration and the arbitrator
cannot decide the said claim. Thus this Court has to
decide whether the claim raised by the respondent
authorities is legal or sustainable.
22. This Court finds that though the siding agreement was
entered on September 25, 2019 but the same was given
effect on and from November 7, 2023 and the
maintenance and other charges are also provided in the
said agreement. But the respondent authorities by a
letter dated January 30, 2026 have informed the
petitioners that the OHE maintenance is not applicable
and is exempted. This Court also finds that the
petitioners by a communication dated July 11, 2026
raised an objection with regard to the demand of
maintenance and inspection charges of OHE
maintenance charges.
23. In the said letter the respondents have mentioned as
follows:
“In view of the aforesaid, we demand justice from
your good self and request your office not to take
any coercive steps or make any adjustments from
our other bills pending resolution of the
aforementioned disputes through mutual
consultation or through the arbitration
mechanism provided under Clause 34 of the
Private Siding Agreement. We are pained to
state that, in the event such deductions are
effected despite our objection, we shall be
constrained to treat the same as wrongful and
9illegal recovery and shall pursue all available
legal remedies and invoke the writ jurisdiction of
the Hon’ble High Court at Calcutta to protect our
interests and legal rights. We beseech your
august office to intervene and request that a
meeting be called urgently to resolve the issue as
we have a long standing business relation with
Indian Railways.”
24. Subsequent to the said letter, the petitioners have issued
the notice under Section 21 of the Arbitration and
Conciliation Act. Once the petitioners have taken the
plea with regard to the arbitration whether the claim
made by the petitioners are coming under the purview of
arbitration is to be decided by the arbitrator not by this
Court.
25. The Clause 34 of the agreement also prescribed with
regard to the arbitration and the said agreement was also
provided with regard to the maintenance charges.
Whether OHE maintenance charges has been exempted
or not is also the matter of evidence. The petitioners
have to prove that the letter issued by the respondents
with regard to exempting the OHE maintenance is in
accordance with law or not. Accordingly, this Court did
not find any merit in the matter.
26. The petitioners instead of approaching the arbitration
proceeding has filed the writ application thus this writ
application is not maintainable.
27. WPA 16764 of 2026 is dismissed.
28. However, there shall be no order as to costs.
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29. Urgent Xerox certified copy of this order, if applied for,
be given to the parties upon compliance of all necessary
formalities.
(Krishna Rao, J.)
